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India's top court decriminalizes adultery

September 27, 2018

In a unanimous ruling, India's Supreme Court said the criminalization of adultery was a "retrograde step." The judges said the law discriminated against women and gave "license to the husband to use women as a chattel."

India's Supreme Court building in New Delhi
Image: picture-alliance/AP Photo/A. Qadri

A colonial-era law that punished adultery with jail time was ruled unconstitutional on Thursday by India's top court. The law had been in place for more than a century and dictated that any man who slept with a married woman, without her husband's permission, could be sent to prison for up to five years.

"Thinking of adultery from a point of view of criminality is a retrograde step," the five-judge bench of the Supreme Court said in what was a unanimous decision.

The law was challenged in front of the court on the grounds that it was arbitrary and discriminated against women, as they could not file a complaint or be held liable under the archaic law.

'Man is the seducer'

Government lawyers had argued that overturning the law threatened the institution of marriage, and caused harm to children and families.

But the 158-year-old law deprived women of dignity and individual choice and gave "license to the husband to use women as a chattel," the court retorted.

Read more: Opinion: Rape becomes a political tool in India

"It disregards the sexual autonomy which every woman possesses and denies agency to a woman in a matrimonial tie," said Supreme Court Justice D. Y. Chandrachud. "She is subjugated to the will of her spouse."

In 1954, the court had upheld adultery as a crime on the grounds that "it is commonly accepted that it is the man who is the seducer and not the woman."

"Man being the seducer and women being the victim no longer exits. Equality is the governing principle of a system. The husband is not the master of the wife," the verdict added.

The court also emphasized that extramarital affairs, while still valid grounds for divorce, were a private matter between adults.

Read more: Is India the worst place in the world to be a woman?

Overturning conservative laws

The ruling was the second time in one month that India's top court overturned a Victorian-era law concerning the sexual choices of the country's citizens. Earlier this month, a ban on gay sex introduced by British rulers in 1861 was also overturned.

Section 377 had become "a weapon for harassment" of homosexuals and "history owes an apology to the members of this community and their families," the court concluded.

Attorney Prashant Bhushan lauded the rulings, saying these landmark decisions on gay sex and adultery had shown the judges' "adherence to liberal values and the constitution."

Adultery is a crime in many parts of the world, particularly in countries with Islamic law, such as Iran and Saudi Arabia, but it is also technically illegal in 20 US states, though rarely enforced.

In Pakistan, adultery can carry up to 25 years in prison, while in Bangladesh men can be jailed five years for the crime. Women can be punished for adultery in Somalia, where Islamist al-Shabab militants would usually stone them.     

In Indonesia's ultraconservative Islamic Aceh province, men and women found guilty of adultery can be whipped 100 times with a cane in public.

jcg/ng (AP, AFP)

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